- January 15, 2013
- Posted by: Josiah Hincks Solicitors
- Category: Employment Law Updates
A devout Christian worker who was sent home without pay for wearing a cross in contravention of her employer’s uniform policy has won a landmark ruling that her human right to religious freedom was violated. The European Court of Human Rights (ECHR) ruled that the domestic UK authorities had failed sufficiently to protect the woman’s right to openly manifest her faith.
The woman, who was awarded Euros2,000 compensation and Euros30,000 in legal costs against the UK government, had worn the cross openly whilst working for British Airways Plc. as a sign of her commitment to her Coptic Christian faith. On refusing to remove or conceal the necklace, she was sent home until such time as she chose to comply with the company’s uniform code. She rejected an offer of administrative work which would not have required her to wear a uniform.
Following media publicity about her case, British Airways changed its uniform policy so as to permit the wearing of certain religious symbols. However, on the woman’s return to her post, the company refused to compensate her for her loss of earnings during the period in which she had chosen not to come to work.
Her claim of discrimination contrary to regulation three of the Employment Equality (Religion and Belief) Regulations 2003 was subsequently dismissed by an employment tribunal which found that the visible wearing of a cross was not a mandatory requirement of the Christian faith but was a matter of personal choice. There was no evidence that any other British Airways employee, in a uniformed workforce numbering 30,000, had ever made such a request, much less refused to work if it was not met. The Employment Appeal Tribunal and the Court of Appeal subsequently dismissed her appeals against that decision.
In upholding the woman’s claim, the ECHR ruled that her insistence on openly wearing a cross was a manifestation of her religious belief, in the form of worship, practice and observance, and as such attracted the protection of the religious freedom rights enshrined in article nine of the European Convention on Human Rights. The refusal of British Airways, between September 2006 and February 2007, to allow her to remain in her post while visibly wearing a cross amounted to a disproportionate interference with those rights.
Ruling that the woman had not been afforded a sufficient degree of protection by the UK authorities, in breach of the positive obligation to do so under article nine, the ECHR noted that there was no evidence that the open wearing of a cross or other religious symbol involved any real encroachment on the interests of others.
Although, in the light of the evidence and mitigating circumstances, the woman was not entitled to compensation for her loss of pay during her period away from work, the ECHR awarded her Euros2,000 to reflect the considerable anxiety, frustration and distress she had endured due to the article nine violation. She was also awarded Euros30,000 to cover her reasonable legal costs.
Three other similar claims were dismissed by the court: A registrar who had refused to officiate at civil partnership ceremonies and a counsellor who declined to provide services to same-sex couples did not have their article nine rights violated because their employers had been pursuing a legitimate policy of non-discrimination against service users. Interference with a nurse’s right to wear a cross necklace had been justified by health and safety concerns and was not disproportionate.